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DECREE No

DECREE No.92-CP OF DECEMBER 19, 1995 OF THE GOVERNMENT ON ENSURING THE INTERESTS OF LABORERS AT THE BUSINESSES WHICH ARE DECLARED BANKRUPT

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to the Bankruptcy Law of December 30, 1993;

Pursuant to the Labor Code of June 23, 1994;

At the proposal of the Minister of Labor, War Invalids and Social Affairs,

DECREES:

Article 1.- The Decree applies to the laborers at those businesses which have been declared bankrupt by the Economic Tribunal of the provincial People's Court.

Article 2.- The laborers at a business which is declared bankrupt shall be paid the following sums which the business owes them:

1. Wages: wages and allowances (if any) after making deductions of advance payments, which the business still owes them up to the time when the business is declared bankrupt by the Economic Tribunal of the provincial People's Court.

2. Social insurance payment: the payment which the business has not yet made or not yet fully made to the Social Insurance Agency as provided for by the Regulations on Social Insurance.

3. Severance pay: The payment for discharge of a laborer which the business has not yet made or not yet fully made to him/her when the labor contract expires as stipulated in Item 1, Article 42, of the Labor Code, and in Article 10 of Decree No.198-CP of December 31, 1994 of the Government giving detailed stipulations and guidance on the implementation of a number of articles of the Labor Code on labor contracts.

4. Payment of other benefits according to the collective labor arrangement and labor contract already signed: the payments agreed to by both sides in the labor contract and collective labor arrangement which the business has not yet made or not yet fully made to the laborers.

Article 3.- When a business is declared bankrupt, the laborers shall receive the severance pay as stipulated in Item 1, Article 42, of the Labor Code, and this is a debt which the business must clear.

The working time for calculating the severance pay rate is defined in Point (a) and Point (d) of Item 3 and Item 5, Article 10, of Decree No.198-CP of December 31, 1994 of the Government giving detailed stipulations and guidance on the implementation of a number of articles of the Labor Code on labor contracts.

The rate of wages for calculating the severance pay is defined in Article 13 of Decree No.197-CP of December 31, 1994 of the Government giving detailed stipulations and guidance on the implementation of a number of articles of the Labor Code on wages.

Article 4.-

1. The documents proving the business's debts to the laborers are vouchers as stipulated in Point (e), Article 10, of Decree No.189-CP of December 23, 1994 of the Government giving guidance on the implementation of the Bankruptcy Law.

2. The Social Insurance Agency shall make vouchers on the sums which the business and the laborers still owe it and send those vouchers to the Property Liquidation Team.

3. The laborers shall list the sums which the business owes them; the chief accountant of the business shall list the sums which the laborers owe the business, and send all those vouchers to the Property Liquidation Team.

Article 5.-

1. If the value of the business's remaining property after making deductions for the bankruptcy cost is enough to settle all debts to the laborers, then the debt to each laborer shall be fully repaid.

2. If the value of the business's remaining property after making deductions for the bankruptcy cost is not enough to settle all debts to the laborers, then the business's debts to the laborers shall be repaid in the following order of priority:

a/ Wages;

b/ Medical fees for a laborer victim of a labor accident or suffering from an occupational disease from the time when he/she is given first aid or emergency intensive care till he/she recovers from the injuries after receiving medical treatment as stipulated in Item 2, Article 107, of the Labor Code;

c/ Social insurance payment;

d/ Compensations or allowances to a laborer who has lost from 81% or more of his/her working ability, or to the next of kin of a laborer who dies in a labor accident or of an occupational disease as stipulated in Item 3, Article 107, of the Labor Code;

e/ Severance allowance;

f/ Other payments stipulated in the collective labor arrangement and labor contract.

Article 6.- When a business is declared bankrupt, the laborer who is victim of a labor accident or suffers from an occupational disease shall have the following benefits:

1. When the laborer who falls victim to a labor accident or suffers from an occupational disease has recovered from his/her injuries and obtained certification from the Medical Examination Council about the extent of the reduction of his/her working ability, the Property Liquidation Team shall pay him/her according to Point (b) and Point (d) of Item 2, Article 5, of this Decree.

2. While the business's remaining property is being liquidated, and the laborer who is victim of a labor accident or affected by an occupational disease is still under medical treatment, the Property Liquidation Team shall work with the staff of the hospital where the laborer is under medical treatment and make an estimate of fees for his/her medical treatment and of the extent of the reduction of his/her working ability, and remit the sum as stipulated in Point (b) and Point (d) of Item 2, Article 5, of this Decree to the bank accounts of the Labor, War Invalids and Social Affairs Service in the locality where the main office of the business is based, so that the Service shall pay to the laborer after his/her medical treatment.

In case the Medical Examination Council concludes that the laborer has lost 81% or more of his/her working ability, the Labor, War Invalids and Social Affairs Service shall pay to him/her according to the stipulations in Item 3, Article 107, of the Labor Code.

If the sum paid to the laborer is in excess of what is his/her due under Item 2 of this Article, the Labor, War Invalids and Social Affairs Service must remit it to the State budget within 30 days beginning from the date when the Medical Examination Council makes its conclusion.

Article 7.- When the business is declared bankrupt, those laborers who are in active military service or who are performing other citizen duties and are temporarily exempted from carrying out their labor contract or are allowed by the business to postpone the carrying out of their labor contract shall receive their severance allowances as stipulated in Article 3 of this Decree.

Article 8.-

1. When the business is declared bankrupt, the laborer who is held in custody or is under detention shall be paid 50% of his/her wages according to the labor contract of the month immediately preceding his/her custody or detention before the date when the business is declared bankrupt by the Economic Tribunal of the provincial People's Court.

2. When the authorized agency concludes that the laborer is not guilty, the Property Liquidation Team shall pay him/her the following sums:

- The remaining 50% of his/her wages during the time of custody or detention before the date when the business is declared bankrupt by the Economic Tribunal of the provincial People's Court;

- Severance allowances according to Article 3 of this Decree.

If the time for liquidating the remaining property of the bankrupt business is over and the laborer is still being held in custody or is still under detention, the Property Liquidation Team shall send the voucher and the sum as stipulated in Item 2 of this Article to the bank accounts of the Labor, War Invalids and Social Affairs Service in the locality where the main office of the business is based.

The Labor, War Invalids and Social Affairs Service shall pay to the laborer when the authorized agency concludes that he/she is not guilty. In case the authorized agency concludes that the laborer is guilty, the Labor, War Invalids and Social Affairs Service shall remit this sum to the State budget within 30 days after the Court gives its ruling.

Article 9.- The Property Liquidation Team shall have to directly pay a lump sum to the laborer for all the debts as stipulated in this Decree. With regard to the debt for social insurance, the Property Liquidation Team shall remit it to the bank accounts of the Social Insurance Agency as stipulated in Article 36 of Decree No.189-CP on December 23, 1994 of the Government giving guidance on the implementation of the Bankruptcy Law.

Article 10.- The Social Insurance Agency to which the business pays social insurance premiums shall have to attend to the social insurance benefits of the laborers as provided for by the Regulations on Social Insurance.

Article 11.- The Labor, War Invalids and Social Affairs Service and the Federation of Labor of the province or city directly under the Central Government where the business bases its main office shall have to follow, check and supervise the assurance of benefits of the laborers as stipulated by law.

Article 12.- This Decree takes effect from the date of its issue.

Article 13.- The Ministers, the Heads of ministerial-level agencies, the Heads of the agencies attached to the Government, and the Presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to implement this Decree.

On behalf of the Government,

The Prime Minister,

VO VAN KIET